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Barlow v. Milgram

July 23, 2009

CLINTON C. BARLOW, ET AL., PETITIONER,
v.
ANNE MILGRAM, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Pisano, District Judge

OPINION

This matter is before the Court on the application of petitioners, Clinton C. Barlow and Karen E. Barlow, for a writ of mandamus.*fn1 This case was originally filed as a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania (Philadelphia), on or about June 4, 2009. Petitioners paid the $5.00 filing fee applicable to habeas actions. On June 8, 2009, the Eastern District of Pennsylvania issued an Order transferring this case to the District of New Jersey based on the Court's finding that the Petitioners are confined in New Jersey. A certified copy of the Transfer Order and the docket were received in this District Court on July 8, 2009. For the reasons set forth below, the petition will be dismissed.

I. BACKGROUND

Petitioners, Clinton C. Barlow and Karen E. Barlow, are challenging a New Jersey state court judgment that appears to have terminated Karen E. Barlow's parental rights. Clinton C. Barlow admits that he is the baby's uncle and not a parent or guardian of the child at issue. Both petitioners state that they are confined at the Mercer County "Workhouse," but they do not indicate that their confinement is based on other convictions. It appears that their present confinement is related to non-payment of fines. (Pet., ¶ 17).

The petition is unclear as to whether the termination of parental rights is a final decision. At paragraph 3 of the petition, Petitioners allege that the State is "trying" to terminate parental rights. They note the date of judgment to be May 15, 2009 (Petition at ¶ 2a), and the date of sentencing to be September 18, 2009 (Pet., at ¶ 2b), which date has not come to pass. This likely may be an error, and could possibly reflect an actual date of September 18, 2008.*fn2

Petitioners allege that the Superior Court of New Jersey, Appellate Division, denied an emergent stay by Petitioners on December 20, 2007, and that the Supreme Court of New Jersey denied the emergent stay on January 25, 2008. (Pet., ¶ 9). Petitioners also allege that they plan to file an appeal. (Pet., ¶ 9h). At ¶ 11(a), Petitioners allege that, on May 12, 2009, they have filed before the Appellate Division, an action to stay lower court orders that are trying to force Karen Barlow to submit to a fifth psychological evaluation on July 29, 2009. They claim that this appeal was denied. (Pet., ¶ 11(a)(5) and (6)).

Next, Petitioners allege that, on May 14, 2009, they filed another petition before the Superior Court of New Jersey, Mercer County, to regain child custody and fire Karen Barlow's public defender attorney. They also allege that they filed an application before the New Jersey Supreme Court to have the baby moved out of the foster house because of asthma, and that this application was denied on May 20, 2009.

II. STANDARDS FOR SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in relevant part as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

Petitioners bring their habeas petition as pro se litigants. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas petition if it appears from the face of the application that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).

III. ANALYSIS

A. Petitioners Not "In Custody" Under 28 U.S.C. § 2254

Petitioners bring this action under 28 U.S.C. ...


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